RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001931 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge, under other than honorable conditions, be upgraded to a discharge under honorable conditions.

2.  The applicant states, in effect, his prior periods of service were not considered and he was given erroneous advice to take an other than honorable discharge instead of going to a court-martial.  He further states he was advised he certainly would spend time in a military prison.  The applicant further describes his marital difficulties after getting married while in Thailand.  He further states he was young and inexperienced at the time of his marriage and marital difficulties.
He states that he could no longer take the pressure and went absent without leave (AWOL).  

3.  The applicant provides a copy of two letters of appreciation from his military service records, a General Educational Development (GED) Certificate, post-service college transcripts, two letters from employers, an un-translated diploma, and a letter from the Department of Veterans Affairs.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows that at the age of 18, he enlisted in the Regular Army on 31 January 1969 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 76Y (armorer/unit supply specialist).  The applicant reenlisted on 16 June 1970.  On 22 August 1972, he reenlisted for a period of 6 years.  The applicant had completed a total of 3 years, 6 months, and 16 days of active service that was characterized as honorable.  

3.  The applicant was assigned to the U.S. Army Depot in Thailand during the period from 14 September 1970 to 13 February 1971.  He was promoted to sergeant/pay grade E-5 on 6 December 1970.  

4.  The applicant was assigned to the 4th Aviation Company at Fort Carson, Colorado on 23 July 1973.  

5.  On 25 January 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for three specifications of writing a check, with the intent to defraud, at the Fort Carson Exchange knowing there were insufficient funds in the bank.  The punishment imposed consisted of forfeiture of $50.00 and reduction to the pay grade of E-4, suspended for 90 days.

6.  On 10 February 1974, the applicant departed AWOL.  On 14 February 1974, the suspension of the applicant's reduction to pay grade E-4 was vacated.

7.  On 11 March 1974, the applicant was dropped from the rolls.  On 
30 September 1974, the applicant returned to military control.

8.  On 16 October 1974, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offense he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  A captain of the Judge Advocate Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of an undesirable discharge, if his request is approved; and of the procedures and rights available to him.

9.  The applicant's commander and intermediate commander recommended his request for discharge be approved and that he be issued an Undesirable Discharge Certificate.

10.  The approval by appropriate authority of the applicant's request for discharge was not available for review.

11.  On 22 November 1974, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), due to conduct triable by court martial.  He had completed 1 year, 7 months, and 1 day of active service that was characterized as under other than honorable conditions.  He had 240 days of time lost.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 25 January 1977, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

15.  The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) shows that the maximum punishment for AWOL for more than 30 days is reduction to lowest pay grade, forfeiture of all pay and allowances, confinement for 1 year, and a dishonorable discharge.  The maximum punishment for desertion is reduction to lowest pay grade, forfeiture of all pay and allowances, confinement for 2 years, and a dishonorable discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his previous service was not considered when he was discharged, that he received erroneous advice concerning accepting an undesirable discharge rather than going to a court-martial, and he was told that he could spend time in a military prison.

2.  The applicant was advised by a captain of the Judge Advocate General Corps of the basis for his charges, the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and the procedures and rights available to him.

3.  The applicant stated, in his request for discharge, signed on 16 October 1974, that he understood the elements of the offense he was charged with, that he was guilty of the offense with which he was charged, and he acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, including loss of many or all benefits.  Therefore, his contention of erroneous advice concerning his discharge is not supported by the evidence.

4.  Although the exact charges that were preferred were not available, the applicant could have received 1 or 2 years confinement if convicted at a court-martial.  Therefore, the advice he received concerning military prison was correct.

5.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  In addition, by the time he was assigned to Thailand he was 20 years of age, was promoted to sergeant during his tour, and he had over a year and a half in the Army.  At the time he went AWOL he was 
23 years of age.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

6.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  As such, he should have been aware of avenues, other than going AWOL, that he should have pursued in resolving any issues he had with the Army.  By going AWOL the applicant violated this special trust and confidence.

7.  Although the applicant's entire separation package was unavailable for review, in the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering all the facts of the case.

8.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

9.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

10.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's undesirable discharge under other than honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __WDP__  __LCB__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___        JNS                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080001931



6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508